Manno v. Healthcare Revenue Recovery Group, LLC et al
Filing
42
ORDER denying 29 Motion to Compel. Please see Order for details. Signed by Magistrate Judge Robin S. Rosenbaum on 4/23/2012. (RSR)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-61357-CIV-SCOLA/ROSENBAUM
STEPHEN M. MANNO, on behalf of
himself and all others similarly situated,
Plaintiff,
v.
HEALTHCARE REVENUE RECOVERY
GROUP, LLC, d/b/a Account Resolution
Services, and INPHYNET SOUTH
BROWARD, INC.,
Defendants.
______________________________________/
ORDER DENYING PLAINTIFF’S MOTION TO COMPEL DISCOVERY
This matter is before the Court on Plaintiff’s Motion to Compel Discovery [D.E. 29], referred
to me by the Honorable Robert N. Scola, Jr. [D.E. 17]. In that Motion, Plaintiff asks the Court to
overrule certain objections raised by Defendant Healthcare Revenue Recovery Group, LLC,
(“HRRG”) in its responses to Plaintiff’s requests for admission, interrogatories, and requests for
production of documents. On April 12, 2012, the Court ordered Plaintiff to “show cause why his
Motion to Compel Discovery should not be denied for failure to file the Motion within the time
required by the Local Rules.” D.E. 39 at 2; S.D. Fla. L.R. 26.1(h)(1) (providing that a party must
file a motion to compel discovery “within thirty (30) days of the occurrence of grounds for the
motion” and that failure to do so, “absent a showing of reasonable cause for a later filing, may
constitute a waiver of the relief sought”). Having reviewed Plaintiff’s Response to the Order to
Show Cause, as well as the filings pertaining to his Motion to Compel, the Court now denies
Plaintiff’s Motion to Compel Discovery.
As the Court noted in its Order to Show Cause, it is undisputed that HRRG served its
responses to Plaintiff’s discovery requests on February 22, 2012. In particular, HRRG’s certificates
of service show that on that date, HRRG’s responses to Plaintiff’s requests for production and
admission were served on Plaintiff’s counsel by e-mail and United States mail, and that HRRG’s
responses to Plaintiff’s interrogatories were served on Plaintiff’s counsel by facsimile and United
States mail. See D.E. 29-2 at 13, 32, 34. Plaintiff does not dispute that his counsel received
HRRG’s discovery responses on February 22, 2012.
This Court’s Local Rules require that any discovery-related motion, including a motion to
compel discovery, “be filed within thirty (30) days of the occurrence of grounds for the motion.”
S.D. Fla. L.R. 26.1(h)(1). Here, the “occurrence of grounds” for Plaintiff’s Motion to Compel was
HRRG’s provision of its allegedly inadequate discovery responses to Plaintiff on February 22, 2012.
Therefore, under Local Rule 26.1(h)(1), Plaintiff was required to file his Motion to Compel within
thirty days of that date —i.e., no later than March 23, 2012.1 Plaintiff, however, did not file his
Motion until three days after this deadline, on March 26, 2012.
The Local Rules make clear that “[f]ailure to file a discovery motion within thirty (30) days,
absent a showing of reasonable cause for a later filing, may constitute a waiver of the relief sought.”
S.D. Fla. L.R. 26.1(h)(1). For this reason, the Court ordered Plaintiff to show cause why his Motion
to Compel should not be denied as untimely. In his response to that Order, Plaintiff asserts that his
untimely filing was “due to a calendaring error stemming from the fact that this is a leap year and
1
As previously noted in the Order to Show Cause, the record reflects no intervening
communications between the parties—for example, negotiations regarding possible further discovery
responses by HRRG—that might have provided a separate “occurrence of grounds” for Plaintiff’s
Motion to Compel and thereby extended the deadline for its filing. In fact, as far as the record
shows, Plaintiff’s counsel’s only effort to communicate with defense counsel about the issues raised
in the Motion was apparently a single, unanswered e-mail correspondence that Plaintiff’s counsel
sent on March 23, 2012—the day the Motion was due. See D.E. 29 at 3 (certificate of conference).
2
February has 29 days instead of the usual 28.” D.E. 41 at 1. According to Plaintiff, he “calendared
the due date of the motion as Monday, March 26, 2012, and filed it that day based on a lack of
awareness that 2012 is a leap year.” Id. at 2. This type of error, in and of itself, however, does not
provide good cause for out-of-time filing.2
Plaintiff further contends that despite “the leap year issue,” his Motion to Compel was, in
fact, timely filed. D.E. 41 at 1. Relying on Fed. R. Civ. P. 6(d), Plaintiff argues that the deadline
for filing a motion to compel was extended by three days because of the manner in which HRRG
served its discovery responses. Rule 6(d) modifies the normal rules for computing time (set forth
in Fed. R. Civ. P. 6(a)) as follows: “When a party may or must act within a specified time after
service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period
would otherwise expire under Rule 6(a).” Fed. R. Civ. P. 6(d). As relevant here, the specified
provisions of Rule 5 generally permit serving a document by mail, by electronic means, or by any
other means authorized by the recipient. See Fed. R. Civ. P. 5(b)(2)(C), (E), (F). Plaintiff maintains
that because HRRG served its discovery responses using these methods, Plaintiff was entitled to
three extra days—i.e., until March 26, 2012—to file his Motion to Compel. The Court disagrees.
Rule 6(d) and its three-day extension apply to time periods “[w]hen a party may or must act
within a specified time after service.” Fed. R. Civ. P. 6(d); see, e.g., Fed. R. Civ. P. 12(a)(1)(A)(i)
(requiring a defendant to serve an answer “within 21 days after being served with the summons and
complaint”). But Local Rule 26.1(h)(1)—which governs all discovery motions, including motions
to compel and motions for protective order—does not require the moving party to “act within a
specified time after service” of the opposing party’s discovery responses or other documents.
2
A basic and essential part of legal practice is accurate calendaring, and parties and their
lawyers are charged with knowledge of the calendar as it actually exists.
3
Instead, the Rule provides that discovery motions “shall be filed within thirty (30) days of the
occurrence of grounds for the motion.” S.D. Fla. L.R. 26.1(h)(1) (emphasis added). Depending
on the particular discovery dispute, the “occurrence of grounds” for a motion to compel could be any
of several acts besides service of discovery responses—e.g., a letter from counsel, an e-mail
message, a phone call, or discussions during a deposition. Regardless of the specific triggering
event, the key point is that once a party seeking discovery learns that the opposing party objects to
providing the requested discovery, the first party must seek relief from the court within thirty days
or else be deemed to have waived such relief. Here, for example, the “occurrence of grounds” for
Plaintiff’s Motion to Compel happened when Plaintiff received notice of HRRG’s objections to his
discovery requests on February 22, 2012. And the fact that this triggering event coincided with
HRRG’s service of its discovery responses did not extend the thirty-day time limit for Plaintiff to
file a motion to compel. See Global Satellite Commc’n Co. v. Starmill U.K. Ltd., No. 02-61752CIV, 2005 WL 5960933, at *2 (S.D. Fla. Nov. 17, 2005) (denying plaintiff’s motion to compel
further responses to interrogatories, primarily because motion was filed more than thirty days after
defendant served its interrogatory answers).
Moreover, the Court declines Plaintiff’s request to excuse his violation of Rule 26.1(h)(1)
because “Plaintiff has not contravene[d] the purpose of the Local Rule, which is to prevent litigants
from waiting until the end of the discovery period to bring a barrage of motions before the Court on
long simmering discovery disputes.” D.E. 41 at 1. While that is indeed one purpose of the thirty-day
time limit in Rule 26.1(h)(1), see S.D. Fla. L.R. 26.1 cmts. (1998), the Rule “reflects a policy of
promoting the prompt resolution of discovery disputes by requiring the parties to timely bring to the
court’s attention matters that the parties cannot resolve amongst themselves.” Kendall Lakes Towers
Condo Ass’n, Inc. v. Pac. Ins. Co., No. 10-24310-CIV, 2011 WL 6190160, at *2 (S.D. Fla. Dec. 2,
4
2011). Towards that end, the Rule sets forth a specific period within which discovery motions must
be filed. Defining that period as “thirty days” rather than, for example, the less precise “a reasonable
time” reflects the judgment of the District that the filing period should not extend beyond thirty days.
Thus, the Rule has the benefit of making clear precisely when discovery motions must be filed. If
just any simple miscalculation were sufficient to suspend the operation of the Rule, it would quickly
become meaningless. Discovery helps clarify the facts and narrow the issues for decision. But when
that process languishes because parties do not promptly bring discovery disputes before the Court,
the progress of the case is slowed. Given the tight deadlines under which most cases proceed, even
short disruptions caused by unresolved discovery disputes can delay pretrial deadlines and the
ultimate resolution of the case. Such unnecessary delays are not acceptable. Plaintiff’s belated
response to HRRG’s discovery requests, for which no valid reason appears, does not reflect an
appreciation of this need for efficient case management or of the responsibility that parties and their
counsel share in that task.
Finally, this is not a case in which one party has unfairly stonewalled another party’s efforts
to obtain discovery. A review of HRRG’s various discovery responses shows that it responded in
good faith to Plaintiff’s discovery requests and that it refused to provide discovery only for certain
requests that it found objectionable. Moreover, the record reflects no other significant out-of-court
efforts by Plaintiff to obtain the requested discovery. See supra note 1. The record instead suggests
that Plaintiff simply waited too long to challenge HRRG’s discovery objections.
In sum, Plaintiff did not file his Motion to Compel within the time required by the Local
Rules. And Plaintiff has offered no valid reason to excuse the untimely filing. Accordingly, it is
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hereby ORDERED that Plaintiff’s Motion to Compel Discovery [D.E. 29] is DENIED.
DONE and ORDERED at Fort Lauderdale, Florida, this 23rd day of April 2012.
__________________________________
ROBIN S. ROSENBAUM
United States Magistrate Judge
cc:
Hon. Robert N. Scola, Jr.
Counsel of record
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